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Wal-Mart Stores Inc. policy calls for an employee’s termination when the worker receives
four disciplinary actions, which the company calls “coachings,” the U.S. Court of
Appeals for the Sixth Circuit said. Store manager Mark Darby followed company policy
by firing Reva Richardson after she violated a workplace safety rule that resulted
in a fourth coaching incident, the court said.

Richardson offered no evidence to challenge Darby’s honest belief that her disciplinary
history supported her termination, causing her age discrimination claim under Michigan’s
Elliott-Larsen Civil Rights Act to fail, the Sixth Circuit said. It affirmed a lower
court’s decision to dismiss the case before trial.

In recent years, employees have challenged the honest belief rule at least three times
by seeking U.S. Supreme Court review. But the justices have so far declined to hear
those cases.

“The so-called honest belief rule is a particularly bold, if not absurd, rhetorical
device concocted by judges to deprive employment plaintiffs of the right to be heard
by a jury,”
plaintiff’s attorney Timothy H. McCarthy of Okemos, Mich., told Bloomberg BNA Sept.
9. McCarthy represented Richardson.

“By definition, the honest belief rule invites the judge to assume the role of jury,”
McCarthy said. “We don’t allow judges to do this in any other area of the law.”

Susan M. Zoeller of Quarles & Brady in Indianapolis and Michael P. Palmer of Barnes
& Thornburg in South Bend, Ind., represented Wal-Mart and deferred to a company spokesman
in response to Bloomberg BNA’s request for comment.

The spokesman told Bloomberg BNA that the company doesn’t “condone or tolerate discrimination
of any type”
and is “pleased the court agreed that age played no factor in Ms. Richardson’s termination.”

Judge Martha C. Daughtrey wrote the opinion, joined by Judges Deborah L. Cook and
Helene White.

Applies Honest Belief Rule

Richardson alleged that after she turned 60, store managers began asking her when
she was going to quit or leave. She also claimed that one supervisor told her son,
who also worked at Wal-Mart, that “she’s too old to work here anymore.”

The Sixth Circuit explained that for Richardson’s bias claim to go to a jury, she
must present evidence that calls into question Wal-Mart’s stated reason for terminating
her, namely, her accumulation of four coachings.

She was disciplined for allegedly getting involved when her daughter was trying to
exchange a damaged laptop computer for a working one, for failing to properly package
a hazardous material item, for having too many unscheduled absences and for purportedly
creating a safety hazard while stacking merchandise that resulted in her injuring
herself.

The court rejected Richardson’s attempts to attack the factual bases for the coachings.

Even if she adequately disputed them, her bias claim still would fail under the honest
belief rule, which allows an employer to avoid liability if it reasonably relied on
“particularized facts that were before it” when the termination decision was made,
it added.

“Here, Richardson offers no evidence that Darby, the supervisor responsible for firing
her, did not honestly believe that Richardson’s coaching history justified the termination
decision,” the court said.

Darby reviewed Richardson’s prior coachings and fired her based on that disciplinary
history and her violation of company safety standards, the court said.

Given Darby’s “reasonably informed and considered decision,” the court said Wal-Mart
is protected under the honest belief rule.

The court also held that Richardson's allegations about manager comments about her
age didn't constitute direct evidence of age discrimination.

To contact the reporter on this story: Jay-Anne B. Casuga in Washington at
jcasuga@bna.com

To contact the editor responsible for this story:
Susan J. McGolrick at
smcgolrick@bna.com

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